Sarah Phipps/The Oklahoman via AP
More States Embrace Clemency

Oklahoma makes history with largest one-day commutation as appetite for clemency returns to states

Three years after Oklahomans voted to reclassify several drug and property crimes as misdemeanors—and six months after lawmakers agreed to make those changes retroactive—462 people were released from state prison in November in what lawmakers called the largest single-day commutation in United States history.Oklahoma Secretary of State, “State Question No. 780,” filed January 27, 2016, https://perma.cc/9JJN-ZXVP; Oklahoma HB 1269 (2019), https://perma.cc/X5VV-MFW3; KFOR-TV and K. Querry, “Oklahoma Voters Pass Criminal Justice Reform State Questions,” KFOR-TV, November 8, 2016, https://perma.cc/2GTJ-KCA2; Darla Slipke, “Governor Signs Legislation to Make State Question 780 Retroactive,” May 28, 2019, https://perma.cc/5SER-BUZX; and Katie Rose Quandt, “The Largest Commutation in U.S. History,” Slate, November 8, 2019, https://perma.cc/R9A3-ZP9K.

The mass release was a significant step in Oklahoma’s effort to reform its criminal justice system. The state has a history of high incarceration rates, “locking up a higher proportion of its residents than any other state or country.”Madison Pauly, “Oklahoma Is the ‘World’s Prison Capital.’ That Won’t Change Anytime Soon,” Mother Jones, May 30, 2019, https://perma.cc/FBM7-YNV6; Kim Bellware, “Oklahoma Approves Largest Single-Day Commutation in U.S. History,” Washington Post, November 3, 2019, https://www.washingtonpost.com/nation/2019/11/03/oklahoma-approves-largest-single-day-commutation-us-history/; and Office of State Representative Jon Echols, “Echols Bill Moves Oklahoma Out of No. 1 in Incarceration,” press release (Oklahoma City, OK: Oklahoma State Legislature, November 1, 2019), https://perma.cc/Y28C-AJD6.While some cautioned that Oklahoma still has a long way to go to reverse decades of mass incarceration, the move prompted one state official in Kansas to consider taking similar action.Madison Pauly, “Oklahoma’s Mass Prison Release Is a Drop in the Bucket,” Mother Jones, November 12, 2019, https://perma.cc/SQ2Z-2NPM; and Jonathan Shorman, “A Mass Commutation in Kansas? ‘Something to Consider’ After Oklahoma Frees 400,” Wichita Eagle,November 6, 2019, https://www.kansas.com/news/politics-government/article237066349.html.

The road to release began in 2016, when Oklahoma voters approved two referendums: State Question 780, which reclassified as misdemeanors instead of felonies simple drug possession and nonviolent property crimes under $1,000; and State Question 781, which mandated that the cost savings from reduced incarceration be used to fund community rehabilitation programs, such as mental health and substance abuse services.Oklahoma Secretary of State, “State Question No. 780,” 2016; and Oklahoma Secretary of State, “State Question No. 781,” filed January 27, 2016, https://perma.cc/VMH3-K3SF. Also see KFOR-TV and Querry, “Oklahoma Voters Pass Criminal Justice,” 2016.

While the first ballot initiative held the potential to influence the state’s prison population—possession of a controlled substance was the most common charge of those incarcerated in Oklahoma between 2005 and 2015—it wasn’t retroactive, so those already behind bars could not benefit from it.Ryan Gentzler, “SQ 780 Should Save Oklahoma Millions Next Year,” Oklahoma Policy Institute, June 14, 2017, https://perma.cc/582H-W5NU.

That changed in May 2019, when Governor Kevin Stitt signed a bipartisan bill that retroactively applied the voter-approved reform.Oklahoma HB 1269 (2019); Slipke, “Governor Signs Legislation to Make State Question 780 Retroactive,” 2019; and KFOR-TV and K. Querry, “Gov. Stitt Signs Criminal Justice Reform Measure to Apply State Question Retroactively,” KFOR-TV, May 29, 2019, https://perma.cc/PA96-2U2M.Release was not automatic: those eligible had to apply to the Oklahoma Pardon and Parole Board. Eight hundred and fourteen people requested sentence commutation and early release consideration.Madison Pauly, “Oklahoma’s Mass Prison Release Is a Drop in the Bucket,” Mother Jones,November 12, 2019, https://perma.cc/22RY-5S85; and Quandt, “The Largest Commutation,” 2019.

In November, the parole board recommended 527 applicants for commutation (the others were rejected for behavioral infractions or prosecutor objections, and 65 remain behind bars on immigration issues or pending charges in other states).Quandt, “The Largest Commutation,” 2019; and Kristi Eaton and Richard A. Oppel Jr., “Nearly 500 Prisoners Freed on a Single Day,” New York Times, November 4, 2019, https://www.nytimes.com/2019/11/04/us/oklahoma-prisoner-release.html.The parole board estimated that Oklahoma would save $11.9 million from the sentence reductions and could have as many as 2,000 empty beds in the system by the end of 2019.State of Oklahoma, “Oklahoma Pardon and Parole Board Recommends Largest Single-Day Commutation in U.S. History,” press release (Oklahoma City, OK; November 1, 2019), https://perma.cc/2SFX-RAST; and Bellware, “Oklahoma Approves Largest Single-Day,” 2019.

The goal of the mass clemency, however, was more than just lowering the prison population, the board noted.State of Oklahoma, “Oklahoma Pardon and Parole Board Recommends,” 2019.Key to lasting change was helping the newly released people successfully transition back into their communities. To this end, Oklahoma held “transition fairs” inside 28 prisons, where those granted release met with groups that provide housing, employment, counseling, and other reentry support.Ibid.; and Quandt, “The Largest Commutation,” 2019.Some were able to secure state ID cards or driver’s licenses before their release.State of Oklahoma, “Oklahoma Pardon and Parole Board Recommends,” 2019; and Bellware, “Oklahoma Approves Largest Single-Day,” 2019.

The commutations, however, did not automatically expunge the records of the 462 Oklahomans. They still have felonies on their records, even though their offenses are classified as misdemeanors today. They can seek expungement, but that can be a pricey and complicated process.Damion Shade, “HB 1269 Makes 780 Retroactive but Leaves Issues Unresolved,” OKPolicy.org, May 23, 2019, updated May 28, 2019, https://perma.cc/6QDZ-QY5X.

Mass clemency—which includes commutation (reducing sentences), as occurred in Oklahoma, as well as pardons (reversing convictions)—used to be much more common until the mid-1980s, when politicians began to run more frequently on “tough on crime” platforms.Quandt, “The Largest Commutation,” 2019.But as more states take steps to enact criminal justice reform, the use of clemency is gaining ground.Ibid.In September, for example, California Governor Gavin Newsom commuted the sentences of 21 people convicted of violent felonies after reviewing applications and taking into consideration a number of factors—citing, for some, their youth at the time of their crimes as well as “disproportionately long sentencing enhancements."Don Thompson, “Gov. Newsom Commutes Sentences for 21 Inmates,” Mercury News, September 13, 2019, https://www.mercurynews.com/2019/09/13/gov-newsom-commutes-sentences-for-21-inmates/; and Michael McGough, “4 Convicted in Sacramento County Killings Receive Clemency from Gov. Gavin Newsom,” Sacramento Bee, September 13, 2019, https://www.sacbee.com/news/politics-government/capitol-alert/article235063472.html.And, in Pennsylvania, nine people serving life without parole received recommendations for commutations from the state’s board of pardons in September; only 16 people had been so recommended in the state since 1995.Joshua Vaughn, “A Historic Day May Mark the Beginning of the End of Death by Incarceration in Pennsylvania,” The Appeal, September 27, 2019, https://perma.cc/8NF9-MAB6.Pennsylvania’s lieutenant governor helped change the commutations process to make it more accessible—including eliminating application fees—and even visited prisons to encourage those serving life sentences to apply.Samantha Melamed, “Convincing Pennsylvania Prison Lifers to Apply for Clemency Is Lt. Gov. John Fetterman’s Toughest Campaign Yet,” Philadelphia Inquirer, October 16, 2019, https://www.inquirer.com/news/pennsylvania-lieutenant-governor-john-fetterman-commutation-board-pardons-life-without-parole-prison-20191016.html.

At the federal level, the issue has made its way into the platforms of the leading Democratic presidential candidates, with several proposing the creation of a bipartisan clemency commission that would identify candidates for release—taking the power of recommendation out of the hands of federal prosecutors.Quandt, “The Largest Commutation,” 2019; and Katie Park and Jamiles Lartey, “2020: The Democrats on Criminal Justice,” The Marshall Project, updated November 4, 2019, https://perma.cc/P28A-8WL3.